U. P. Power Corporation LTD. vs Lohia Brass (P) LTD.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2006 Supreme(SC) 670

2006(6) Supreme 126
SUPREME COURT OF INDIA
(From Allahabad High Court)
H.K. Sema and A.K. Mathur, JJ.
U.P.Power Corporation Ltd. & Anr. — Appellants
versus
Lohia Brass (P) Ltd. & Ors. — Respondents
Civil Appeal No. 7817 of 2003
With
Civil Appeal Nos. 7828, 7831, 7829, 7830, 7842, 7827, 7840, 7839, 7837, 7838, 7836, 7835, 7834, 7823, 7826, 7825, 7832, 7833, 7821, 7822, 7854, 7918, 7851, 7850, 7849, 7841, 7853, 7852, 7843, 7847, 7848, 7846, 7845, 7844, 7820, 7818, 7819, 7859, 7857, 7856, 7855, 7860, 7858, 7861, 7862, 7864, 7863, 7865, 7866, 7867, 7868, 7881, 7880, 7878, 7877, 7876, 7879, 7869, 7870, 7871, 7875, 7874, 7672, 7883, 7885, 7882, 7884, 7886, 7887, 7873, 7888, 7889, 7890, 7892, 7891, 7893, 7894, 7895, 7898, 10078, 10079, 9935-9936 of 2003, Civil Appeal No. 3156 of 2006 @ S.L.P. (C) No. 8296 of 2004
and Civil Appeal No. 2793 of 2004
Decided on 25-7-2006
Counsel for the Parties :
For the Appellants : Pradeep Misra, Mrs. Indu Misra, Jitendra Mohan Sharma, Debasis Misra, M.L. Lahoty, Paban K. Sharma, Ms. Poonam Lahoty and Himanshu Shekhar, Advocates.
For the Respondents : R.S. Suri, B.K. Choudhary, R. Vikas, E.C. Vidya Sagar, E.C. Agrawala, Sujit Singh, Sudhir Nandrajog, Anil Kumar Sangal, Dr. Sumant Bharadwaj, A. Dattar, Ms. Mridula Ray Bharadwaj, S.P. Sharma, Mukesh Verma, Manish Shanker, Yash Pal Dhingra, Dharmesh Misra, Amol Dixit, Pradeep Kumar Bakshi, Pallav Sishodia, Sajan Narain, Rajeev Jha and Rajan Narain, Advocates.

Headnote:Indian Electricity Act, 1910 — Section 29-B — U.P. Electricity (Regulation of Supply, Distribution, Consumption and Use) Order, 1977 as amended on 30-4-1984 by (1st Amendment) Order, 1984 and (Second Amendment) Order, 1984 — Procedure for penalty for violation of peak hour restrictions — Power Corporation in order to check the malpractice by the consumers installed electronic meters which are computerized and can be downloaded for 35 days — Board issued a circular on 15-10-1998 to the effect that penalty for peak hours restrictions will be imposed as per the meter reading inspection report — It was stated that one penalty for one month may be imposed on the bill — Division Bench of the Allahabad High Court held that the consumer cannot be levied with penalty for each alleged contravention but once only on basis of alleged meter reading report — It was held that one meter reading inspection report which stores data for 35 days shall be treated as one contravention irrespective of the fact that in report number of contraventions might have been made — Conflicting decisions — Whether one meter reading inspection report which can download 35 days data should be construed as single violation of peak hour restrictions — (No).
       Held : Reading of these two circulars makes it very clear that for violation of restrictions of peak hours on the basis of M.R.I. report for the first time, one penalty for one month was to be imposed in the bill. Therefore, by the circular dated 7.4.1999 one time concession was given to the consumers but it was not meant to be for all time to come. Both these circulars clearly contemplate that for each contravention penalty will be levied and not simply because the violations have been recorded in one M.R.I. report, therefore, the same will be considered to be as one violation. Hence, the view taken by the Division Bench of the Allahabad High Court is prima facie not borne out on reading of these circulars. Therefore, we are of opinion, the view taken by the Division Bench of the Allahabad High Court cannot be sustained.(Para 6)
       It is unfortunate that the Lucknow Bench decided the writ petition on 19.3.2001 and the Allahabad Bench decided the matter on 25.3.2001 yet learned counsel appearing for the Electricity Board did not bring the aforesaid judgment of the Lucknow Bench to the notice of High Court at Allahabad. Be that as it may, we are of opinion that the view taken by the Division Bench of the High Court at Allahabad is not correct. This judgment dated 25.5.2001 passed by the Division Bench of the High Court at Allahabad has been subsequently followed in rest of the writ petitions. Therefore, all these appeals have been filed by the appellant-Corporation. In view of the above, we are of opinion, the judgment dated 25.5.2001 passed by the Division Bench of High Court at Allahabad cannot be sustained and the same is set aside. Consequently, all the Civil Appeals filed by corporation are allowed and the writ petitions filed by the writ petitioners before the High Court are dismissed.(Para 7)
       It appears that the Division Bench was under impression that the present case is also governed by the judgment in M/s. Prachi Lathers (P) Ltd. (supra) where the Division Bench has dismissed the writ petition. Therefore, we are of opinion, that the view taken by the Division Bench by its order dated 21.8.2003 cannot be sustained and the same is set aside. Consequently, this appeal is allowed and the case is remitted back to the High Court of Allahabad to consider whether the cold storage industry is a continuous process consumer and whether it has been exempted by the aforesaid communication issued by Chief Engineer (Commercial), Lucknow dated 9.4.1986. (Para 10)

JUDGMENT

A.K. Mathur, J. — Leave granted in S.L.P. (C) No. 8296 of 2004.

2. All this batch of appeals involves similar questions of law. Therefore, they are disposed of by this common order. At the outset, we may point out that there are conflicting decisions rendered by the Division Bench of the High Court of Allahabad at Allahabad dated 25.5.2001 passed in Civil Miscellaneous Writ Petition No. 41013 of 2000 [M/s. India International Exporters (MBD) Ltd. & Anr. vs. State of U.P. & Ors.] and another judgment rendered by the High Court of Allahabad, Bench at Lucknow on 19.3.2001 passed in Writ Petition No.1117 of 2001 with regard to the interpretation of the notification issued on 30.4.1984 and as amended on 21.5.1984.

3. In order to dispose of this batch of appeals, the facts stated in C.A.No. 7817 of 2003 are taken into consideration. The respondents (herein writ petitioners) by writ petition challenged the demand raised by the U. P. Power Corporation through various bills purporting to realize penalty from each of the writ petitioners for violation of peak hour restriction, before the High Court of Allahabad.

4. State Government of Uttar Pradesh issued a notification under Section 29-B of the Indian Electricity Act, 1910 ( hereinafter to be referred to as Act of 1910) known as U.P. Electricity (Regulation of Supply, Distribution, Consumption and Use) Order, 1977 which was published in the official gazette. This order was amended on 30.4.1984, known as U.P. Electricity (Regulation of Supply, Distribution, Consumption and Use) (1st Amendment) Order, 1984 by which Clause 9 of 1977 Order was amended and it was substituted by the following :

"9(1) Without prejudice to the provisions contained in Section 42 of the Indian Electricity Act, 1910, all Chief Zonal Engineers, Superintending Engineers, Executive Engineers, Assistant Executive Engineers and Assistant Engineers of Uttar Pradesh State Electricity Board, the Chief Electrical Inspector, all Deputy Electrical Inspectors and all Assistant Electrical Inspectors to the State Government are authorized to disconnect the supply summarily without notice in relation to such installation as are found upon inspection made by them to have contravened the provisions of this Order. The supply shall remain disconnected for the period specified below:

(a)Contravention first in point of time – 5 days

(b)Contravention second in point of time – 10 days

(c)Contravention third in point of time – 20 days

(d)Contravention fourth in point of time – permanently

Provided that for the purpose of this clause any contravention prior to May 1, 1984 shall not be taken into account.

(2) In addition to above, such consumers shall be liable to pay the penalty for each contravention as follows:

(a)Consumers having contracted load upto 100 KVA, at Rs.50 per KVA on their contracted load.

(b)Consumers having contracted load above 100 KVA and upto 500 KVA at Rs.30 per KVA on their contracted load subject to minimum of Rs. 5,000.

(c)Consumers having contracted load above 500 KVA at the rate of Rs.20 per KVA on their contracted load subject to minimum of Rs.15,000.

The reconnection shall only be done after payment of penalty and expiry of the above specified disconnection period whichever is later. "

The amended order of 1984 was initially applied from 1.5.1984 to 21.5.1984. The State Government again issued another order known as U.P. Electricity (Regulation of Supply, Distribution, Consumption and Use) (Second Amendment) Order, 1984 on 21.5.1984 and it was made applicable with effect from 1.5.1984. By this Clause III of the first amendment order was substituted and the same was made applicable with effect from 1.5.1984 and was to remain in force until withdrawn. It is alleged that the said order was not withdrawn by the State Government and is still in force. The Corporation in order to check the malpractice by the consumers installed electronic meters which are computerized and can be downloaded for 35 days which wil

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